EXPLANATORY STATEMENT
Select Legislative Instrument No. 87, 2014
Issued by the authority of the Minister for Justice
Crimes (Overseas) Act 1964
Crimes (Overseas) (Declared Foreign Countries) Amendment Regulation 2014
Section 9 of the Crimes (Overseas) Act 1964 (the Act) provides that the Governor‑General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act extends the application of the criminal laws of the Jervis Bay Territory to certain categories of Australian citizens and permanent residents working overseas on behalf of, or at the direction of, the Commonwealth. The extension of the criminal law of the Jervis Bay Territory is consistent with other Commonwealth legislation that applies criminal law with extraterritorial effect.
The Act automatically applies to Australian citizens or permanent residents who are:
- granted diplomatic or consular immunity, or granted immunity from criminal prosecution in a foreign country because of their relationship with an international organisation, or
- granted immunity from prosecution in a foreign country under an agreement or arrangement between Australia and the United Nations, the United Nations and the foreign country or Australia and another country, and the person is undertaking a task or performing a function under that agreement or arrangement.
The Act may also be extended by regulation to apply to Australian citizens or permanent residents who are undertaking a task or project, or performing a function on behalf of the Commonwealth, or pursuant to directions given by, or on terms determined by the Commonwealth in a foreign country (Commonwealth officials), and the foreign country (or part of a foreign country) is a declared foreign country.
Section 3C of the Act specifies that a country (or part of a country) may be declared by regulation to be a country (or part of a country) to which the Act applies. The Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 (the Principal Regulations) currently prescribe Iraq, Solomon Islands, Afghanistan, Papua New Guinea and Nauru are listed in the Principal Regulations as ‘declared foreign countries’.
The Regulation ensures that Iraq, Solomon Islands, Afghanistan and Papua New Guinea continue to be declared foreign countries beyond 1 July 2014 (the declaration for Nauru ceases in 2017). This ensures that Australia has jurisdiction if any Commonwealth officials working in those countries, for example to implement the regional processing scheme, engage in conduct that does not constitute an offence against local law but would constitute an offence under Australian law. This is important where local criminal laws are not as comprehensive as Australian criminal law. Where the conduct engaged in by the Commonwealth official does constitute an offence against local law, the declaration also gives Australia jurisdiction. This will enable Australian authorities to prosecute the individual under Australian law if the local authorities are unable or choose not to prosecute.
The Regulation does not affect Australians employed in Iraq, Solomon Islands, Afghanistan and Papua New Guinea by the local Government or Australians in each country for private purposes.
Subsection 3C(4) of the Act provides that, before the Governor‑General makes the regulation, the Attorney-General, after consulting the Minister for Foreign Affairs, must be satisfied it is appropriate to do so having regard to:
- whether the Act would apply to Australians in the foreign country even if the regulations were not made
- the nature of the activities engaged in by Australians in the foreign country
- the period during which those activities are to be engaged in
- the number of Australians likely to be engaging in those activities
- the circumstances in which Australians engaged in activities in the foreign country are subject to, or immune from, the foreign country’s criminal laws, and
- any other relevant matter.
The Minister for Foreign Affairs has been consulted and supports the making of the Regulation.
Subsection 3C(3) provides that the regulation must specify the day on which the foreign country is to start and cease being a declared foreign country. Iraq, Solomon Islands, Afghanistan and Papua New Guinea will cease to be declared foreign countries for the purposes of the Act on 30 June 2019. After this time, the Regulation can be reviewed and remade if required.
The Regulation commenced on the day after it was registered on the Federal Register of Legislative Instruments.
Consultation outside the Australian Government was not undertaken for this legislative instrument as it relates to criminal justice and law enforcement matters.
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not necessary for any of these amendments.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Crimes (Overseas) (Declared Foreign Countries) Amendment Regulation 2014
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Crimes (Overseas) (Declared Foreign Countries) Amendment Regulation 2014 (the Regulation) will amend the Crimes (Overseas) (Declared Foreign Countries) Regulations 2003 (the Principal Regulations) to ensure that Iraq, Solomon Islands, Afghanistan and Papua New Guinea continue to be countries to which the Crimes Overseas Act 1964 (the Act) applies as, under the Principal Regulations, these countries are due to cease being declared foreign countries for the purposes of the Act on 30 June 2014.
The Act extends the application of the criminal laws of the Jervis Bay Territory to certain categories of Australian citizens and permanent residents working overseas. The extension of criminal law of the Jervis Bay Territory is consistent with other Commonwealth legislation that applies criminal law extraterritorially (for example, the Defence Force Discipline Act 1982, Crimes (Aviation) Act 1991 and the Crimes at Sea Act 2000).
The Act automatically applies to Australian citizens or permanent residents who are:
- granted diplomatic or consular immunity, or granted immunity from criminal prosecution in the foreign country because of their relationship with an international organisation, or
- granted immunity from prosecution in the foreign country under an agreement or arrangement between Australia and the United Nations, the United Nations and the foreign country or Australia and the foreign country, and the person is undertaking a task or performing a function under that agreement or arrangement.
The Act may also be extended by regulation to apply to Australian citizens or permanent residents who are undertaking a task or project, or performing a function on behalf of the Commonwealth, or pursuant to directions given by, or on terms determined by the Commonwealth in a foreign country (a Commonwealth official), and the foreign country (or part of a foreign country) is a declared foreign country.
This gives the Commonwealth jurisdictional standing where a Commonwealth official, who is not subject to immunities, engages in conduct that does not constitute an offence against local law but would constitute an offence under Jervis Bay Territory law. Where the conduct engaged in by the Commonwealth official does constitute an offence against local law, the declaration would also give Australia jurisdiction. This would enable Australian authorities to prosecute the individual under the law of the Jervis Bay Territory if the local authorities are unable or choose not to prosecute.
The Regulation will not affect Australians employed in Iraq, Solomon Islands, Afghanistan and Papua New Guinea by the local government of each country or Australians in each country for private purposes.
Human Rights Implications
This instrument engages the following human rights:
- the rights to a fair trial and minimum guarantees in criminal proceedings in Article 14 of the International Covenant on Civil and Political Rights (ICCPR), and
- the rights to equality and non-discrimination in Article 2(1) and Article 26 of the ICCPR.
Right to a fair trial
The Regulation engages the rights to a fair trial and minimum guarantees in criminal proceedings. Article 14 of the ICCPR provides that everyone shall be entitled to a fair trial and provides for certain minimum guarantees in the determination of any criminal charge against a person. Article 14 is aimed at ensuring the proper administration of justice by upholding, among other things, the right to a fair hearing and the right of a person to have a sentence or conviction reviewed by a higher court.
While the Regulation engages the rights in Article 14 by extending the Australian criminal justice system, it does not limit these rights or otherwise alter Australia’s laws or arrangements in relation to criminal procedure, or create new criminal offences. It will only operate to extend the criminal law of the Jervis Bay Territory to apply with extraterritorial effect to Commonwealth officials in Iraq, Solomon Islands, Afghanistan and Papua New Guinea, in the same way it applies to persons in Australia. If a person were to be prosecuted under the Act, the prosecution would occur in Australia, under Australian law. All of the safeguards in place under Australian law to protect the rights of individuals in criminal investigations and prosecutions will also apply to persons who commit an offence in Iraq, Solomon Islands, Afghanistan and Papua New Guinea and who are prosecuted under the Act. Thus, persons prosecuted under the Act will be guaranteed the rights contained in Article 14, including a fair trial and criminal process rights.
Rights of equality and non-discrimination
The Regulation engages with the rights of equality and non-discrimination in Articles 2(1) and 26 of the ICCPR. Article 2(1) requires States to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR, without distinction of any kind. Article 26 prohibits discrimination in law or in practice in any field regulated by public authorities. The grounds of prohibited distinction or discrimination include race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status. Decisions by the United Nations Human Rights Committee suggest that a clearly definable group of people linked by their common status is likely to fall under the definition of ‘other status’.
The effect of the Regulation would be to apply the Act to a selective category of persons, being Australian citizens or permanent residents undertaking a task or project, or performing a function, on behalf of the Commonwealth, or pursuant to directions given by or on terms determined by the Commonwealth in Iraq, Solomon Islands, Afghanistan and Papua New Guinea. This may constitute ‘other status’.
Such differences in treatment will not amount to prohibited discrimination if the reasons for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate. This test is set out in the Human Rights Committee’s General Comment No. 18: Non-Discrimination. Although the Regulation would apply the Act and, therefore, the Jervis Bay Territory criminal law selectively, it is reasonable for Australia to be able to hold persons deployed by the Commonwealth to Iraq, Solomon Islands, Afghanistan and Papua New Guinea accountable for their conduct in country that would be in violation of Australia’s criminal law.
The legitimate purpose pursued by the Regulation is to ensure that there is a comprehensive and appropriate scheme of criminal sanctions in place to govern the conduct of Commonwealth officials in Iraq, Solomon Islands, Afghanistan and Papua New Guinea. The Regulation is reasonable and objective, as it will ensure that these persons are not shielded from criminal sanctions that they would otherwise be subjected to under Australian law in situations where these countries are unable to prosecute the person for their conduct; for example where the conduct engaged in by a person is an offence against Australian law, but is not an offence under local law.
For these reasons, this regulation is compatible with the rights to equality and non‑discrimination.
Conclusion
This Regulation is compatible with human rights, as it does not raise any human rights issues.
The Hon Michael Keenan MP
Minister for Justice